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Jack Kirby Still Deserves Better

by on August 3, 2011

When I first read that the heirs of
comic book legend Jack Kirby were trying to gain some control of the copyrights to
the characters he created or co-created, like the X-Men, Thor and the
Avengers–maybe you’ve heard of them–I wrote an essay here I called
“What Does Jack Kirby Deserve?” I came down on what I thought was the reasonable side: that Kirby’s family should get at least a little
piece of the billions of dollars that various corporate entities, the
latest being the Disney Corporation, have earned from his brilliant
inspiration over more than half a century.

A US District Court Judge in New York,
however, disagreed, and recently quashed the Kirby heirs’ attempt to terminate Marvel’s control of the copyrights with a summary judgment in Marvel’s favor. You
can read the whole thing here. The judgment is 50 pages of thorough
rejection of all the arguments in the Kirby heirs favor. It depends
largely on the statements of Kirby’s most famous collaborator, Stan
Lee, to establish that Kirby’s work for Marvel comics was always done
at Lee’s editorial direction and legally counts as what is known as “work for
hire,” which means work that the company, not the creator, owns. 

Without Kirby, forget about this.

Depositions of witnesses that would
have contradicted Lee’s statements were thrown out because they
weren’t there when the work was being done and deals were being made.
Later contracts Kirby signed giving Marvel the copyrights when Marvel
was trying to protect itself from changing copyright laws were
interpreted as evidence that Marvel had always held the copyrights,
because of the cagey legalese they were written in. Legalese that
never admits Kirby owned anything, even as Marvel asked him to sign
over the best portion of his life’s work.

In short, even though there’s potential
for an appeal, it doesn’t look good for the Kirby heirs. An appeals
court is going to give a lot of weight to the factual findings of
this court, so the potential for a radically different ruling might
be slim.

I’ve learned from nearly a decade of
being a reporter that legal, however, does not necessarily equal
fair, right and good. The judgment even admits this, noting that the
legal case is not about who created what or whether Kirby and other
artists were treated fairly by Marvel. It’s just the hard question of
whether what Kirby created was “work for hire” and if, as the
court has ruled, it was, then the copyrights have always belonged to
Marvel and the heirs have no rights to them.

And this.

Courts were one of my beats when I was a
reporter and I really enjoyed covering it. I’d spend hours in
courthouses reading long depositions and legal documents to try to
understand a case, so I could write a better story. So I’ve just spent
hours looking a the legal documents in the Kirby case, and you know

I haven’t changed my mind. Kirby, and
by extension, his heirs, deserved better. Without Kirby there simply
wouldn’t be much of a Marvel universe to speak of. Instead of
creating new characters and concepts, the company has been mostly
content to milk the ones Kirby made for decades. All the while
treating the man who made it possible in a way that would shame the
lowest beggar, with such stunts as making him jump through hoops just
to get a portion of his original artwork back.

So, if you agree with me, what are you
going to do about it?

Steve Bissette is a big name who got
much kinder treatment from DC Comics. He has possibly made more money
from royalties on one character he co-created, John Constantine, than
Kirby ever saw from all the icons he brought to life. He says he’ll
never buy another Kirby-derived work from Marvel again and suggests
others do the same. That’s right, no Captain America DVD and forget
the Avengers movie. And basically most of the comics, you could
probably read Deadpool, Dr. Strange, Ghost Rider and Daredevil if
they didn’t have any crossovers, but Kirby’s influence is so vast that almost everything else would be off-limits. He even did some early work
on Spider-Man, which is enough to poison that well even if it wasn’t
enough to prove that Kirby deserves compensation for it.

And this. I could go on for a while here …

Others have come to the conclusion that
work for hire agreements are for suckers, and that no artist should
ever simply give something to a comic book company to put in its
sandbox, that instead the good ideas should be saved for
creator-owned works. One could argue that’s been the status quo for
years anyway, and modern Marvel comics are certainly poorer for it.
Perhaps that’s just the price of perfidy, as Kirby co-creation Doctor
Doom said in a comic I read once.

Realistically, I don’t think my fellow
geeks are going to be able to take as hard-line a stance as Bissette
calls for. That Avengers movie just looks too sweet, and such a
complete boycott of Marvel properties would also hurt a lot of good
people who had no hand in cheating Kirby. In fact, these people are
probably inspired by him and respect him.

And most of us also won’t get the
chance to turn down Marvel when it wants our new character idea.

But we can still make our voices heard.
Write letters, write e-mails, speak up at conventions, turn your nose
up at anything promoted explicitly as a Kirby work. Buy your Marvel
Masterworks used so Marvel doesn’t get the money. Let them know that
what has happened isn’t right and that you think the heirs do deserve
some compensation, and maybe they’ll get the message so that some of
what is wrong can be put right.

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